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Monday, 9 February 2009

The IPKat has been made aware, via several sources, of apparently impending changes to the regulations for becoming a qualified European patent attorney. One of these sources, Marie Jansson, has helpfully provided the following summary of the issue, which the IPKat would like to pass on to his readers.

"I have recently come across an amendment to the regulation on the European qualifying examination (REE) that may be of interest to you/IPkat. Although mostly sensible, i.e. introducing one exam a year earlier than the rest to prevent re-sit students from repeating all the exams year after year, the REE has slipped in a rather contentious point in Annex 3.

Annex 3 provides that enrolment for the EQE will require a four-year training period for those who have completed a three-year university course. As a majority of UK trainee patent attorneys fall within this category, an increase of one year will have a massive impact on both the selection of trainees and the costs of training as per David Bradley in the January edition of the CIPA journal. Mr. Bradley points out that it seems strange to accept that students who have less scientific technical knowledge would need more time during their training contract where the focus is on legal and practical skills.

Strongly objected by CIPA, (Mick Ralph collecting evidence on the exact numbers to be affected), the real shock of the amendment is the accompanying comment:

'In practice, only UK candidates with bachelor degrees with honours will be disadvantaged. However, UK candidates increasingly have MSc (minimum four years) or PhD degrees.'

This seems to suggest that the EPO is equating a bachelors degree obtained in the UK as weighing less than that obtained elsewhere because it took less time. This proposal could then be interpreted to be anti-European after the introduction of the Bologna Process and the transfer of qualifications directive. I wouldn’t like to suggest discrimination, but how else could you justify such a move?

If its the high failure rate of the UK students that have caused this amendment then this could be perhaps justified. However, it is well known that UK candidates’ pass rates are consistently well above average as is demonstrated by the following graph:

Given that the UK pass rate is already higher than average it seems quite irrational to implement a change which requires additional training for candidates of a country which already has a higher pass rate than most.

So maybe there is the potential for Judicial Review using the German courts; perhaps the British IP industry will rally against these proposals and the ensure they never come into force. All that is certain is, if this does come into force, the UK will be unjustifiably biased."

This particular Kat, who has yet to pass all the required exams, is a little wary of expressing an opinion either way. He does, however, think it is a little odd to propose arbitrarily disqualifying a whole group of able people on the basis that their technical training is not sufficient. This Kat's own particular four year University course was an awfully long time ago, and he can't believe that extra year really made much difference in the end. It's all very well making sure that standards are kept high, but quite another thing to discriminate on irrelevant grounds. What should surely matter is how well one can do the job, which the EQEs should surely aim to be testing if they have any point to them at all. What next, the IPKat wonders? Proof of residency in Germany?

Merpel warns the IPKat to be careful; how do you know those papers are really marked anonymously?

19 comments:

Anonymous
said...

I took my degree in Scotland where a BSc is usually taught over 4 years. However I took 'direct entry' straight to second year, completing my degree in 3 years - this option was only available to those students with top A-level grades.

I wonder how the EPO would view this, would I be required to undertake an additional year of technical training over an (arguably!) less able student who took an extra year to complete the same uni course?

The "honours" part of a bachelor with honours would still save you a whole 2 years. I don't see any arbitrary discrimination at all.

Since I'm Dutch I have to rely on Wikipedia:In England now, most first degrees are assumed to be honours as Third Class honours are actually a relatively low standard.So it seems students in the UK get the "honours" part essentially for free, which is currently saving them a whole THREE years compared to candidates with a bachelor's degree from other countries. How fair is that?

Here in the Netherlands a bachelor's degree at university level takes three years as well, and nobody would expect a candidate with a bachelor's degree to be treated on equal footing with a candidate with a master's degree.

I may be misinterpreting things (and again, I'm relying on Wikipedia), but to me it seems that Art. 2 of the Instructions concerning the qualifications required for enrolment for the EQE is currently unfairly favouring UK candidates with a bachelor's degree with (default) honours. Candidates with a bachelor's degree from other countries (whether it takes 3 years or 4 years) need a total of 6 years of professional experience before entering the EQE.

The answers to both the above can be found by comparing the current EQE regulation with the new proposal. The current regulation identifies certain qualifications: a master’s degree, a bachelor’s degree with honours, a maîtrise, a diplôme de l’enseignementsupérieur, a Hochschuldiplom or equivalent as sufficient qualification for sitting the EQE after 3 years. The new proposal instead merely refers to the length of the course. If a degree is obtained after 3 years, 4 years training is required before sitting the EQEs. If someone takes a 4 year course, 3 years training is required.

The first correspondent’s comments illustrate the absurdity of the proposal. Yes because he/she was better qualified and therefore able to complete his/her degree more quickly the new proposal will penalise them by requiring them to train for an extra year.

In answer to the second correspondent, the whole point about the current system is that it acknowledges that there are differences between the education systems in Europe. In England students specialise far earlier in their schooling than on the continent. This means that English bachelor’s degrees tend to start at a higher level and be more intensive and hence cover technical material in 3 years which is covered more slowly in other systems. The issue with “honours” is a bit of a red herring as a pass degree i.e. a degree without honours is essentially a fail under the UK system.

What is worrying however is that the new proposal is acknowledged as being discriminatory against UK applicants. However, as the graph in the article shows the status quo does not seem to prevent UK applicants from passing the exam. Nor does there seem to be a clamour of complaint that UK attorneys’ technical education is lacking. So why is there a move to change the rules?

Doesn't everyone know that wikipedia should always be taken with a pinch of salt.

That comment is nonsense - you can graduate an English university with a first class degree or a second class degree and you get the "honours" part, you can also graduate with a third class degree and no honours. You can also fail and not graduate at all. How does that make the honours part free?

Actually, Britons may be unaware that this has been a serious source of annoyance for Continentals for a while. Not to enter the EQE, but to become an EPO examiner. You see, before Bolonia, in many countries there was no equivalent to the Anglo-Saxon BSc.

EPO staff regulations require that examiners normally be "university" graduates. However, the closest thing there was in several Continental countries to a British Bachelor's, were the "middle" degrees imparted in institutions (like the German Fachhochschulen, the Belgian Hautes Écoles, or the Spanish Escuelas Universitarias) which weren't habilitated to provide doctorate degrees, and thus weren't considered as "universities" by the EPO. Thus, somebody with an English 3-year BSc. in engineering could get in, whereas somebody with a Spanish 4-year "ingeniero técnico" degree, Belgian "ingénieur industriel", or German Dipl.-Ing. (FH) couldn't. I'm certain there are quite a few grindable axes out there...

In England, students start to specialise at age 14. I am old enough to have taken O levels rather than GCSEs and at that time took eight subjects (four of them sciences/maths) and for A levels - 2 years study starting at age 16 - took physics, chemistry and maths, with nothing else to disctract from them. By the time I entered university at age 18 to study for my three-year physics degree, I already had five years of specialised physics training. How does this concentrated approach compare with continental systems?

One effect on EQE results if this proposal does go through might be that GB candidate pass rates increase even more compared to those from other countries. It certainly doesn't make any logical sense to require an extra year's *legal* training to those who are already outperforming in a *legal* exam!

Ah ha. But as an EPO examiner and British you have a check and balance whereby experience before the age of 25 does not count - even if that experience is at the EPO, as an examiner! Yes, 21-24 year old British examiners do not get on the career ladder until they are 25 - this arose from the days of national service in many European countries but not in the UK. Consequently some non-UK graduates acquired "experience" doing military service behind the bar (after graduating) while those UK doing examiner's work (after graduation) were not gaining "experience". Funny old world.

Regarding the "free honours", I think the writer may be confusing the get one degree, buy a masters scheme at Oxford whereby the Masters is a tag on for a nominal sum (it used to be the order of £25 about 25 years ago) but does (or did) not require any further work or submissions.

As for honours/not, Scotland had degrees (3 years) and honours degrees (4 years with 1st, 2/1, 2/2 and 3rd), honours requiring a year longer. If you failed the honours you simply received the degree. The EPO requires at least a 2/1 honours.

It would also not be good if the EPO were to realise that a Cambridge degree only requires nine 8-week terms of actual study. They do get confused by a BA degree certificate with no mention of the "technical" discipline.

Also, in England, children start formal schooling in the term when they turn five, so I went to school at four years old. Whether starting school this young is actually beneficial is another thing, of course...

As an ex-UKIPO examiner now working in a german patent department it is not uncommon to see trainees (Praktikant) in their 30's, everything takes longer here! What is apparent is that a bachelor degree from the UK (even from Oxbridge) cannot be compared to a bachelor degree (or Diplom-Ingenieur)from Germany who in my view gain significantly more knowledge and experience during their degree course (and not just the ability to learn and forget large volumes of information quickly). This missed experience cannot however be compensated by an extra year of studying for the eqe, which UK students excel at anyway due to this focus of passing exams during their school and degree work.

To become qualified before the DPMA you have to prove that you have worked for a year doing technical practical work (having nothing to do with patents!). This should also be a requirement for the eqe as it is this practical experience which can't be learnt sitting in an lawyers office and which will be useful for the rest of the career.

Er...to the Anonymous before last, I must point out that a normal Diplom-Ingenieur degree (from a Technische Hochschule or Universität) is usually considered to correspond to a MSc, since it takes a very minimum of 9 semesters (plus six months' internship and a degree thesis), and opens directly the way to a doctorate. (In practice, few manage a Dipl.-Ing. degree in less than 12 semesters.) It's a Diplom-Ingenieur (FH) - from a Fachhochschule - which may be considered to correspond to a BSc, since you'll need an additional academic qualification before entering a doctorate program. (Also, you need the Abitur baccalaureate to enrol in a TH or U, whereas a FH can be entered with a vocational secondary education degree).

no i'm not an epo examiner! but i was there a few months ago witnessing a pretty incompetent UK agent during opposition proceedings (to be fair i've also seen some very good UK agents). My point is just because UK students are particularly good at passing the eqe it doesn't mean they have all the experience which is required to be professional rep. The exam can't test everything (and I wouldn't want it to be any longer!).

So, because you saw one UK person you thought to be incompetent, you think all UK candidates should undergo an extra year's legal training? Looking at the EPO database of EPAs by country, this is one EPA out of about 1800 based in the UK (there will be some EPAs practising in states other than their home one, but it gives a rough estimate). Hmm. Doesn't seem like a persuasive argument to me.

Your point that "UK students are particularly good at passing the eqe it doesn't mean they have all the experience which is required to be professional rep" should really be applied to all nationalities... passing the EQE is only one step towards being a good competent Patent Attorney.

However, it should be remembered that the British success at the EQE is *not* a coincidence. The majority of the UK profession sit the CIPA finals before the EQE's. The UK exams are generally considered to require a higher standard than the EQE's. By the time it comes to the EQE's we're battle hardened veterans in comparison to many of our European compatriots (and the trick is then to adjust to the formalistic EPO style examinations rather than using the pragmatic UK approach).

Now I can't compare the CIPA exams to the German exams but I'm certain that the CIPA exams teach a UK attorney far more of the attributes required to be an able professional representative than a year of technical experience could.

i guess it depends on what kind of work you want to do having done the eqe. If it is mainly fighting for rights before the EPO then I agree this extra/technical year is irrelevant. If your work is mainly writing applications then I think this technical year would be extremely useful.

This comment is not only aimed at UK agents, but to all agents and examiners.

Being a spinless ex-examiner i find the comments in this blog relating to examiners not that kind, however I agree that the skills gained as an examiner have very little to with the job of a patent attorney. I've done an MEng at a good uni, worked as an examiner, worked as an agent and worked in industry choosing which attorneys to work with and I prefer it when I don't have to think out all the obvious and advantageous embodiments of an invention myself due to lack of general engineering knowlege by an attorney, of course most attorneys can draft good applications when no real technical experience is required (e.g. in paper A). I also wish I had had the technical knowledge I have now when I was an examiner, it would have made decisions on inventive step much easier! In my view the best or most difficult university engineering/science courses offer the least practical experience, and this is what I think can be very helpful for the work of drafting patents.

What struck me as odd about this regulation, was not the requirement for an extra year of training for UK bachelor’s students, it was the sly way that such an, undoubtedly, discriminatory provision was introduced. Are the EPO not implicitly saying that UK institutions do not provide as high a standard for their first degree students as provided in the more normal European four-year equivalents? Or that those UK qualified patent attorneys with a bachelor’s degree are not as qualified as those with a master’s degree or higher.